Primary Navigation

About Jason Ser

Author Archive | Jason Ser

No published opinions today, and only one notable summary order involving an SEC civil enforcement action.

SEC v. DAVID SMITH, LYNN SMITH, et al., Nos. 15-1314-cv(L), 15-1317-cv(con), 15-1354-cv(con) (Summary Order of April 18, 2016) (Pooler, Park, and Livingston). This summary affirmance addressed multiple disgorgement orders by a district court in a civil enforcement action relating to violations of the securities laws.

Defendant David Smith, who was ordered to return $87,433,218 obtained from investors, claimed that collateral estoppel limited the disgorgement amount in the SEC case to the amount awarded in restitution in a preceding criminal action. The court disagreed and noted that the SEC allegations proven spanned from 2003 to 2009, whereas the criminal cases addressed only from 2006 to 2009. In addition, the court declared that disgorgement and restitution are “separate remedies with separate goals, and need not be treated the same.”

The defendant in this case appealed his jury conviction for conspiracy to distribute and possession with the intent to distribute heroin. He argued that the evidence was insufficient to support the conspiracy conviction and that other errors denied him a fair trial, including whether the jury should have considered the fact of a prior felony information. Because the sufficiency claim related to the credibility of cooperating witnesses, the Court deferred to the jury’s credibility determinations and held that the jury had “ample evidence” to find the defendant guilty.

With regard to the prior felony information question, the Court cited the continuing validity of the Supreme Court’s decision in Almendarez-Torres and held that “the fact of a prior felony conviction may be decided by a judge, not a jury, even if that fact …

This case involved an ineffective assistance of counsel claim following defendant’s murder conviction. The defendant argued that his defense lawyer was ineffective for not calling a particular witness at trial and for failing to investigate a possible witness. The Court disagreed with both arguments.

The decision whether to call a specific witness, even one that might offer exculpatory evidence, is a question of trial strategy and is not viewed as a lapse in professional representation. The defendant claimed that the uncalled expert witness could have cast doubt on the state’s pathologist, who opined as to the victim’s date of death. That date, however, did not coincide with the defendant’s claimed alibi that existed two days later. According to the Court, the decision to not call the witness was strategic. It avoided potential cross-examination of the uncalled defense witness by the …

This defendant claimed that the sentencing court committed procedural error by failing to articulate the reasons for the sentence imposed and not addressing the 3553(a) factors. On plain error review, the first challenge failed. The Court explained that even if a sentencing court fails to state in open court the reasons for its sentencing decision, that is not tantamount to establishing plain error. Moreover, the sentencing court in this case expressly adopted the presentence report, which was detailed. The report discussed the amount of drugs and money involved in the offense. The district court even noted the former at the sentencing hearing. Based upon the totality of circumstances, no plain error existed.

The Court also disagreed with the 3553(a) claim, noting there is no requirement that the sentencing court mention the factors or explain how each …

This defendant appealed his sentence and claimed that the sentencing court committed procedural error by failing to calculate the guidelines, properly consider the 3553(a) factors, and adequately explain the sentence imposed. All challenges failed. The district court calculated the guidelines given its review and “explicitl[] adopt[ion]” of the presentence report’s accurate guideline calculations. At the hearing, it also noted the low end of the range when explaining that it would not impose a guidelines sentence. The district court also provided an adequate explanation for the below guideline sentence imposed, including aggravating and mitigating factors.

As to the defendant’s 3553(a) argument, the Court affirmed, but voiced concern about whether the sentence “had an air of inevitability” based upon comments by the district court at the defendant’s plea hearing. At that hearing, the district court noted an …

This defendant appealed from convictions for obstructing administration of the IRS, subscribing to false and fraudulent income tax returns, and aiding and assisting the preparation of false individual tax returns. He claimed expiration of the six-year statute of limitations precluded Indictment and that the district court imposed an unreasonable sentence after considering tax returns that were not a basis for conviction. Both arguments failed.

First, the defendant failed to raise any statue of limitations claim before the district court. Thus, he waived the argument on appeal. Nevertheless, the claim failed on the merits according to the Court. The limitation period runs from the filing deadline for the relevant tax returns rather than the date on which the return was actually submitted. As to the obstruction allegations, such a charge is within the limitations …

In this case, a jury convicted two defendants (Johnson and Jones) after trial for multiple counts of bank fraud and aggravated identity theft, as well as conspiracy to commit bank fraud. A third defendant (Williams) pleaded guilty to one count of each of these offenses, entered into a cooperation agreement, and testified against Johnson and Jones. The district court imposed sentences of 264 and 240 months’ imprisonment for Johnson and Jones respectively, and 109 months’ custody for Williams. Jones challenged the sufficiency of the evidence against him at trial. All three defendants challenged their sentences as procedurally and substantively unreasonable. The Court denied all claims.

In his sufficiency of the evidence claim, Jones argued that his mere presence did not make him a member of the conspiracy and that …

In this case, the defendant was convicted after trial of conspiracy to possess methamphetamine with intent to distribute. He received 77 months’ custody. On appeal he challenged the district court’s admission of out-of-court statements by a co-conspirator pursuant to Federal Rule of Evidence 801(d)(2)(E) and argued that their admission violated his Confrontation Clause and due process rights. He also challenged his sentence as procedurally and substantively unreasonable claiming that the district court refused to consider arguments regarding his methamphetamine addiction. All of these claims failed.

First, no error occurred as a result of admitting the co-conspirator’s statements. To be admissible pursuant to Rule 801(d)(2)(E), the district court must find by a preponderance of evidence that the statement was made in furtherance of the conspiracy. The district court did not err by admitting the statements, …

Post-conviction for wire fraud and bank fraud, the defendant in this appeal challenged his sentence as procedurally unreasonable and challenged the sufficiency of the evidence to his intent to commit bank fraud pursuant to 18 U.S.C. § 1344. The district court calculated the loss amount by taking 30 percent of the total mortgage price of certain properties purchased, including those by two co-defendants. Because the defendant never challenged the presentence report’s method of calculating loss and in his sentencing letter specifically contemplated guidelines that included losses incurred by the co-defendants, he waived any factual challenge on appeal. As to his sufficiency of the evidence claim, the defendant argued that the government failed to prove that the banks lost anything of value. The Court reconfirmed the Circuit’s reading of the bank fraud statute “expansively” and noted …

The defendant in this appeal challenged his sentence as procedurally and substantively unreasonable. He pleaded guilty to being a felon in possession of firearms and received 3 years’ prison. At sentencing, the district court compared him to another defendant with a less serious criminal history and stated that their sentences had to be similar because both were equally involved in the offense. The Court held that no procedural error occurred as a result of the comparison made between what the defendant contended were differently situated defendants. Relying on United States v. Williams, 524 F.3d 209, 216 (2d Cir. 2008), the Court reiterated that a district court can consider “factors beyond the scope of § 3553(a), as long as the outside factors ‘are not inconsistent with those listed in § 3553(a) and are logically applied …

The defendant in this appeal challenged his sentence as procedurally unreasonable. Specifically, he claimed that the district court erroneously denied him safety valve relief, held him responsible for 5 to 15 kilograms of cocaine, and denied a departure for acceptance of responsibility. The defendant was convicted after trial of participating in a drug conspiracy. The district court conducted a Fatico hearing prior to imposing sentence and credited another witness’s testimony over the defendant’s. The Court held that there was no error in this credibility finding much less clear error, which is the standard of review for findings of fact made after a Fatico hearing. The defendant’s testimony regarding a minimal number of drug transactions was internally inconsistent the amount of money he admitted having in his home. The reasons for having this money, too, changed during …